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HomeMy WebLinkAboutRES NO 79-92RESOLUTION NO. 79-92 A RESOLUTION ESTABLISHING THE DISABILITY RETIREMENT REVIEW CO~I'--,'~E AND THE RETIREMENT APPEALS BOARD. WHEREAS, on May 20, 1992, by Resolution No. 78 -92, the City Council rescinded Resolutions No. 6-74, No. 7-74 and No. 4-80 regarding establishing procedures and regulations for the discharge of duties and responsibilities of City Manager and Retirement Appeals Board concerning disability retirement of local safety members under the Public Employees' Retirement Law of the State of California; and WHEREAS, it is the intent of this Council to have one resolution, rather than three, establishing the procedures and regulations concerning disability retirements of local safety members; and WHEREAS, it is the intent of this Council to establish the procedures and regulations for the discharge of duties and responsibilities of the Disability Retirement and Review Committee and the Retirement Appeals Board as well as the duties and responsibilities of the City Manager concerning disability retirement of local safety members under the Public Employees Retirement Law of the State of California. follows: NOW, THEREFORE, IT IS HE~.,~ RESOLVED AND OP, DERED as DISABILITY RETIREMENT ~EVIEW COMMI'~-£~. FOR SA~T~ MEMBerS. All applications for disability retirement shall be reviewed by the Disability Retirement Review Committee for Safety Members, ("Committee"'). Said "Committee" shall consist of: 1. The appropriate department head, i.e., fire safety member - Fire Chief, police safety member - Police Chief; 2. A representative from the City Attorney's Office; and 3. A representative from the Risk Management Department. OR;Q~k'AL The Department Head member shall be the Chairperson of this "Committee." If the application for disability retirement pertains to the Police Chief or the Fire Chief, then that particular Chief shall not serve as a member of the Committee; and 2. The non-affected Chief shall then serve and shall be chairperson. Upon receipt of an application for disability retirement by or on behalf of a local safety member, the "Committee" shall: Within five (5) working days after receipt of said application, notify the safety member to file with the "Committee," within ten (10) days, any and all evidence in the form of written medical reports, certificates or other documents which the safety member wishes the City to consider in making the determination required to be made. Obtain all claims and medical reports filed with Risk Management for workers compensation benefits. Cause a factual investigation of the circumstances surrounding the cause of the injury or disease to assist in the following determination: a) Whether the local safety member is incapacitated for the performance of the duties of his/her position, and b) Whether the disability or death is the result of injury or disease arising out of and in the course of the local safety member in employment. Arrange for a medical examination of the local safety member by the City Physician in cases where the "Committee" decides this is necessary or desirable. The "Committee" shall then notify the local safety member that he is required to report at a time and place specified. The City Physician shall also receive copies of all medical reports prior to seeing the local safety member. Within thirty (30) days after receipt of an application for disability retirement by a local safety member, the "Committee" shall make their recommendations to the City Manager. The Chairperson of the "Committee" shall continue to monitor the application until final disposition. - 2 OR;G:NAL Any deviation from these procedures shall be by mutual consent of the local safety member, the Manager. II. DETERMINATIONS BY CITY MANAGER The City Manager shall: Independently review the local safety member's application, including the recommendations of the Disability Retirement Review Committee and all of the medical evidence provided to the above-mentioned "Committee". Require the department head or his designee, employing the safety member to file with the City Manager a complete report on a form supplied by the City Manager. Obtain a report from the Risk Management Office as to the status of the Safety Member's workers compensation benefits under Section 4850 of the Labor Code. Review the safety member's employment status, pay status, accrued vacation and sick leave entitlement and accrued overtime or compensatory days off. Gather any other information necessary to determine the effective date of the retirement. Pursuant to the authority delegated to the City Manager by Resolution 5-74, make the following determinations: Whether the applicant, a local safety member, is incapacitated physically or mentally for the performance of the duties of his position? Whether the disability or incapacity for performance of duty is permanent or of extended and uncertain duration? e Whether the disability is industrial, i.e., arising as a result of injury or disease out of and in the course of employment as a local safety member? 4. The effective date of retirement of the applicant for disability retirement, and Whether a local safety meraber who has been retired for disability has ceased to be disabled for his position held at retirement? OR;G~r~AL He Within fifteen (15) working days upon receipt of the medical evidence, documents and recommendations by the "Committee," the City Manager shall either approve or deny the disability retirement or reinstatement and, if approved, determine whether said disability is either industrial or nonindustrial. The City Manager shall, within three (3) working days, notify the local safety member and PERS of his determination and if the determination of the City Manager denies in whole or part any of the benefits sought in the application, the notice shall advise the applicant of his right to appeal as hereinafter provided. III. APPEALS BOARD Whereas, it is also the intent of this Council that the safety member shall have the right to appeal, in writing, any determination made by the City Manager, this Council establishes the Retirement Appeals Board of Bakersfield for Safety Members, hereinafter called the "Appeals Board." A. The "Appeals Board" shall consist of three (3) members, as follows: When the appeal is by a law enforcement safety member, the Board shall consist of two (2) members of the Civil Service Board of the Police Department of the City of Bakersfield and one (1) member of the Civil Service Board of the Fire Department of the City of Bakersfield; When the Appeal is by a fireperson, the "Appeal Board" shall consist of two members of the Civil Service Board for the Fire Department of the City of Bakersfield and one (1) member of the Civil Service Board for the Police Department of the City of Bakersfield. B. Procedures for Appeal Hearings Local safety members shall have ten (10) days upon receipt of the City Manager's determination to file a written notice of appeal of the City Manager; Failure of the safety member to file a timely Appeal shall render the determination of the City Manager final and binding. Within five (5) days upon receipt of the safety member's request for Appeal, the City Manager shall notify the "Appeals Board" by sending said request and the classification of the safety member to the Chairpersons of the Police and Fire Civil Service Commission, hereinafter called the "Commission." ~%AK~ OR;G~AL Upon notice of the Appeal to the Chairperson of the Police and Fire Commissions, the members of each respective commission shall select the appropriate number of members and also determine which member(s) shall sit on the appeals board for that particular hearing. The Board shall then delegate the appeal to an Administrative Law Judge as defined under Section 11502 of the Administrative Procedures Act. (See Section IV, Administrative Law Judge, supra.) Proposed Decision by Administrative Law Judge (ALJ). Upon receipt of the "Proposed Decision" by the Administrative Law Judge, the "Appeal Board" shall consider same at its next meeting. The "Appeals Board" shall mail a copy of the Administrative Law Judge's proposed decision to the City Manager, the Chairperson of the "Committee," and the safety member and shall notify all parties as to the date the "Appeals Board" will consider the decision. Said hearing shall take place within ten (10) to thirty (30) days of receipt of the decision. Thereafter, either party, within five (5) days of receipt of the proposed decision, may submit written argument to the "Appeals Board" and to the other party in support or opposition to the proposed decision. Either party may also present oral arguments during the "Appeal Board" hearing. Such argument shall last no longer than five (5) minutes and the other party shall have three (3) minutes to rebut such argument. At the conclusion of the arguments, the "Appeals Board" may question the parties or their counsel, and shall then take the matter under advisement. Order of the Apl~eals Board. 1. Within thirty (30) days after the "Appeals Board" hearing, the "Appeals Board" shall either: a) Adopt the proposed decision of the Administrative Law Judge in its entirety; b) Modify all or parts of the decision; o) Reject the recommendation of the Administrative Law Judge in its entirety; or d) Order all or parts of a hearing to be reheard by the same or another Administrative Law Judge. The "Appeals Board" shall take no action to modify all or parts of the decision or reject the recommendation of the Administrative Law Judge without first reviewing a certified transcript or certified recording of the hearing conducted by the Administrative Law Judge. The thirty (30) day time period mentioned in Section D (1) may be suspended for a reasonable period, not to exceed sixty (60) days, in the event it becomes necessary to prepare a transcript of the proceedings. Within seven (7) days of the determination, the "Appeals Board" shall give written notice to the City Manager and to the safety member. Said written notice of determination shall include the reasons for rejection, modification, or rehearing of the Administrative Law Judge's decision. e The decision of the "Appeals Board" shall be final and binding, except, The safety member shall have thirty (30) days following the decision to file a writ of mandate pursuant to section 1094.6 of the California Code of Civil Procedure and section 11523 of the Administrative Procedures Act. E. Reconsideration. Within ten (10) days after receipt of the final determination of the "Appeals Board," either party may file a request for reconsideration with "Appeals Board" only on one or more of the following grounds: a) The findings of fact were procured by fraud, b) The evidence does not justify the findings of fact, and/or c) There is new evidence which should have been considered but was not available at the time of the hearing. Upon receiving a request for reconsideration, the "Appeals Board" may: a) Deny the request, or b) Review the request itself either through written or oral argument, A request for reconsideration does not suspend the thirty (30) day time period for filing a writ of manda~F~ OR;~£ IV. ADMINISTRATIVE LAW JUDGE The Administrative Law Judge, hereinafter known as the "ALJ," shall be vested with the same powers resting in the "Appeals Board" with respect to the conduct of the hearings, with the exception that the decisions of the "ALJ" shall not be binding upon the "Appeals Board." The Safety Member shall be given a minimum of 30 days notice of the "ALJ" hearing. All request for continuance of hearing shall be considered in accordance with Section I(E) of this Resolution. In accordance with the Administrative Procedures Act, hereinafter known as the "A.P.A.," the hearing need not be conducted under the technical rules of evidence. Unless otherwise admissible, hearsay evidence may be used solely for the purpose of supplementing or explaining a finding but shall not be sufficient in itself to support a finding; 2. Oral evidence shall be taken only under oath or affirmation. Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine witnesses on any matter relevant tot he issues, to impeach any witness and to rebut any evidence. Within thirty (30) days following the conclusion of the hearing and the submission of the case, the Administrative Law Judge shall prepare a proposed decision and submit such decision to the "Appeals Board" for consideration. The decision shall set forth findings of fact and conclusions of law. .......... o0o .......... - 7 - I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on May 20, 1992 , by the following vote: ~[~¥ C~RK a~d ~Z OEE[C[O of t~e Council of the City of Bakersfield APPROVED May 20, 1992 CLARENCE E. MEDDERS MAYOR of the City of Bakersfield APPROVED AS TO FORM: ~NCE M. LUNARDINI ~ CITY ATTORNEY, City of ~akersfield LTC/meg RET-APP.R-4 5/7/92 - 8 -